Why do I receive NVC visa processing notification while my priority date is yet to come?

I am a Chinese national with an approved I-526 case. I recently received an email from The National Visa Center stating that my visa is being processed. I am currently residing in the United States and I understand filing an I-485 could be my alternative. However, my priority date is still two months behind the current date. Which one should I use as a reference - the NVC processing or the priority date? How is it that the consular processing doesn’t seem to be subject to the same priority date restriction for filling I-485 since NVC is processing my visa right now?

Answers

NVC generally contacts you to start preparing the case about 2 months ahead of the priority date becoming current. It will take you time to submit all civil documents and pay fees/file DS-260 online but your actual immigrant visa interview will not be scheduled until your priority date becomes current and the immigrant visa number is available to you and until NVC has received and reviewed your NVC packet and DS-260 online. Adjustment of status filing can only be made once your priority date is current and an immigrant visa number is available to you. Either process is still governed by the same priority date. Your immigration attorney should advise you whether to proceed with the immigrant visa consular processing or opt to adjust status in the US. It is easy to recall your case from NVC by notifying the NVC that you will file adjustment of status in the US if you are otherwise eligible.

Your EB-5 Immigration attorney will be able to advise you. The first step will be contacting the NVC and replying to their requests. By the time you apply in person at the U.S. consulate your priority date should be current. Or you may wait in legal status in the U.S. and submit your I-485 application when your priority date becomes current.

There are 2 dates that you should be tracking - the priority date and the dates for filing. NVC will start processing and receiving Applications for processing when your Priority Date is on or before the "dates for filing" indicated in the Visa Bulletin issued by the Dept. of State every month. If USCIS determines that there are more immigrant visas available for a fiscal year than there are known/filed applicant for such visas, then they will allow applicants to use the Dates of Filing Visa Applications chart date.

Normally when you receive your packet from the National Visa Center it is based upon their belief that a visa number will be available in the near future. However, if you are physically in the United States in lawful status, normally you would want to file an Application for Adjustment of Status on Form I-485 once a visa number in fact becomes available. Given the fact that your priority date is still two months behind the current date, you are close enough for the NVC to initiate the process given the fact that it takes time. The controlling factor is your priority date and again, since you are in the U.S., all things being equal you should apply for Adjustment of Status on Form I-485. Consular Processing is subject to the very same priority dates, but the NVC simply wanted to get a head start with the process if you were going to apply for your immigrant visa through the American Consulate in Guangzhou.

It is better to check with the NVC and decide which of the two options you want to pursue rather than going through a lot of these questions and assumptions. Although it appears you may be able to adjust in the US, if you are in lawful status in the country, just proceed and accordingly notify the NVC. However, if you prefer and wants to pursue consular processing then keep on processing through the NVC. Advisedly, either way, respond to the NVC in an appropriate manner and if necessary work with an attorney.

Consular processing cases try to get the cases ready for the interview a few months before the priority date is current knowing they cannot be scheduled until actually current. Priority Date governs either process.

Immigrant visa application takes about 4-6 months before an applicant could be interviewed at the Embassy, NVC will begin to take the DS-260 applications and civil documents a few months earlier. This is why there are two different charts shown in the Visa Bulletin. The Priority date shown in Chart A for Final action determines when you could be interviewed at the Consulate post or file I-485, and the Priority Date shown in Chart B determines when you could submit the DS-260 to NVC.

The NVC usually contacts applicants within two months of the priority date becoming current because the processing of submitting the DS-260 and civil documents often takes time. Filing an I-485 for adjustment of status, however, requires a visa number to be available at the time of filing. Therefore, your priority date needs to be current to file the I-485, but the NVC can begin the immigrant visa processing of your case before the priority date is current. In any event, your immigrant visa interview will not be scheduled unless/until your priority date is current.

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